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Failure-to-warn, Defective product designs, Strict liability, Negligence


Consumer Protection Law | Courts | Judges | Litigation | Marketing Law | Torts


Liability for a manufacturer's failure to warn of product-related risks is a well-established feature of modern products liability law. Yet many serious doctrinal and conceptual problems underlie these claims. Professors Henderson and Twerski explore these problems and argue that failure-to-warn jurisprudence is confused, perhaps irreparably, and that this confusion often results in the imposition of excessive liability on manufacturers. The authors begin by exposing basic errors resulting from courts' confusion over whether to apply a strict liability or a negligence standard of care in failure-to-warn cases. Having determined that negligence is the appropriate standard, they then examine more substantial and intractable difficulties in failure-to-warn litigation, particularly the inability of juries to consider the marginal costs and benefits of adding warnings to those already provided. The authors conclude that fairness and efficiency goals of products liability law would be better served if judges were to take a more active role in screening out marginal failure-to-warn claims.

Publication Citation

Published in: New York University Law Review, vol. 65, no. 2 (May 1990).